Gibson v. Florida Dept. of Corrections, 1D02-0118.
| Decision Date | 09 October 2002 |
| Docket Number | No. 1D02-0118.,1D02-0118. |
| Citation | 828 So.2d 422 |
| Parties | Thomas B. GIBSON, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent. |
| Court | Florida District Court of Appeals |
Thomas B. Gibson, pro se, petitioner.
Louis A. Vargas, General Counsel and Susan A. Maher, Assistant General Counsel, Department of Corrections, Tallahassee, for respondent.
Thomas B. Gibson seeks certiorari review of an order of the circuit court denying his petition for writ of mandamus. In that petition, Gibson argued that the Department of Corrections ("DOC") lacked authority to forfeit certain previously accrued gain-time awarded him by the sentencing court, and he sought an order compelling DOC to recalculate his sentence in order to award him proper credit. The circuit court correctly found that Gibson was not entitled to relief, and we therefore deny the petition for writ of certiorari.
In 1994, Gibson was simultaneously sentenced in three cases, based on a single sentencing guidelines scoresheet, to consecutive terms of imprisonment in two cases, followed by a probationary term in the third. Through the accrual of time served and gain-time, he was released from DOC custody in 1998 to begin service of the probationary term, but he violated the terms of his supervision and was resentenced in the third case to an overall term of seven years' incarceration. Gibson filed a motion to correct that sentence, arguing that under Tripp v. State, 622 So.2d 941 (Fla. 1993), he was entitled to have credit for time served on the sentences imposed in the first two cases applied to the sentence imposed upon revocation of probation in the third case. The sentencing court agreed and entered an order awarding credit for time served and unforfeited gain-time accrued on the initial prison sentences.
Consistent with the sentencing court's order, DOC applied the credit for time served and unforfeited gain-time, but relying on its independent authority under section 944.28(1), Florida Statutes, it then exacted a forfeiture of the accrued gain-time and restructured Gibson's sentence accordingly.1 Specifically, relying on methodology approved in Eldridge v. Moore, 760 So.2d 888 (Fla.2000), DOC imposed a forfeiture penalty, the practical effect of which was to require Gibson to serve out that portion of his prior incarceration which was not served due to the award of gain-time. While the mathematical computations involved in implementing the forfeiture penalty are complex, we conclude that DOC has acted within its lawful authority.
As a preliminary matter, Gibson's contention that DOC lacked authority to forfeit his previously accrued gain-time because that gain-time had been specifically awarded by the sentencing court is clearly meritless. See Forbes v. Singletary, 684 So.2d 173 (Fla.1996)
. Thus, the crux of the issue is whether DOC correctly concluded that Eldridge controls the manner in which the forfeiture of gain-time is to be implemented. By its terms, Eldridge applies in cases involving either a probationary split sentence or a true split sentence. See Eldridge, 760 So.2d at 892. Gibson's original sentence was obviously not a true split sentence. However, we conclude that in light of Tripp, his original sentence of incarceration as to two cases followed by a term of probation in the third constitutes a probationary split sentence within the meaning of Eldridge.2
In Tripp, the supreme court rejected the contention that convictions for two separate crimes result in two separate sentences when sentencing takes place simultaneously and is based on a single scoresheet encompassing both cases. See also Cook v. State, 645 So.2d 436 (Fla.1994)
; Horner v. State, 617 So.2d 311 (Fla.1993). The court in Tripp went on to hold that in such circumstances, where a term of incarceration on one offense is followed by a term of probation on another, credit for time served on the first offense must be awarded on the sentence imposed after revocation of probation on the second.
In Larimore v. State, 823 So.2d 287, (Fla. 1st DCA 2002), this court interpreted Tripp to mean that separate crimes and sentences may constitute a split sentence where both crimes were scored on a single scoresheet. We agree with this assessment of the impact of Tripp, and consistent with this interpretation, we hold that Gibson's original sentence in this case, which was derived from a single scoresheet, was a probationary split sentence. Accordingly, we conclude that Eldridge is applicable to this case, and that DOC's imposition of a forfeiture penalty as a consequence of Gibson's violation of probation was proper. The sentencing scheme utilized in this case is not at all uncommon, and we thus surmise that our decision will affect a relatively large number of inmates in the state correctional system. Accordingly, we hereby certify the following question as a matter of great public importance:
DOES THE FORFEITURE PENALTY ENUNCIATED IN ELDRIDGE v. MOORE, 760 So.2d 888 (Fla.2000), APPLY WHERE A DEFENDANT RECEIVES A SENTENCE OF INCARCERATION FOR ONE OFFENSE FOLLOWED BY A SENTENCE OF PROBATION FOR ANOTHER OFFENSE, WHERE BOTH CRIMES WERE SCORED ON A SINGLE SCORESHEET AND THE TRIAL COURT AWARDS PRISON CREDIT PURSUANT TO TRIPP v. STATE, 622 So.2d 941 (Fla.1993), UPON VIOLATION OF PROBATION FOR THE SECOND OFFENSE?
PETITION FOR WRIT OF CERTIORARI DENIED.
I concur completely in the opinion of Judge Miner. I write solely to clarify that, where multiple offenses are scored on a single scoresheet, a defendant receives only one sentence for those multiple offenses.
Based on a single scoresheet, Gibson was sentenced to two consecutive prison terms in two cases to be followed by a probationary term in the third case. Through the accrual of gain time, Gibson was released early to begin his probation. However, he violated that probation and was subsequently sentenced to a term of imprisonment. The trial court entered an order awarding credit for time served as well as unforfeited gain time from Gibson's previous sentence. The Department of Corrections applied the credit but forfeited Gibson's previously accrued gain time based on the supreme court's decision in Eldridge v. Moore, 760 So.2d 888 (Fla. 2000).
In Eldridge, the Florida Supreme Court held that the Department has the authority to forfeit gain time upon revocation of probation. Id. at 890-91. The court concluded "that upon resentencing in either a probationary split sentence or a true split sentence, regardless of whether the trial court resentenced the inmate to a lesser sentence, the Department's statutory authority to forfeit `all gain time' upon probation revocation should not be lessened." Id. at 892.
The dissent contends that the initial sentence does not constitute a probationary split sentence because Gibson received separate sentences for each offense. This misconstrues Tripp v. State, 622 So.2d 941 (Fla.1993), and conflicts with this Court's recent decision in Larimore v. State, 823 So.2d 287, (Fla. 1st DCA 2002). In Larimore, this Court construed Tripp v. State, 622 So.2d 941 (Fla.1993), to mean that separate offenses and sentences constitute a split sentence if the offenses are scored on a single scoresheet and considered in forming a scoresheet sentence. Larimore v. State, 823 So.2d 287. Indeed, the Florida Supreme Court has stated that "offenses treated together at sentencing via a single scoresheet continue to be treated as a single unit for purposes of sentencing upon a violation of probation." Hodgdon v. State, 789 So.2d 958, 963 n. 5 (Fla.2001); see also Horner v. State, 617 So.2d 311, 313 (Fla.1993)
(). Therefore, even though he was convicted of multiple offenses, Gibson received only one sentence because the offenses were scored on a single scoresheet and considered together in forming his scoresheet sentence.
As Gibson received only one sentence for his three cases, his initial sentence constituted a probationary split sentence. Thus, pursuant to Eldridge, the Department had the authority to forfeit any accrued gain time upon revocation of probation.
I would treat Thomas B. Gibson's petition for writ of certiorari, addressed to the circuit court order denying the petition for writ of mandamus he filed seeking to require the Department of Corrections (DOC) to award proper credit against sentences he is serving, as a petition for writ of habeas corpus, see Fla. R.App. P. 9.040(a) & (c), and direct DOC to release him forthwith.3 In my view, with proper credit awarded, he has now served all of his sentences in their entirety.
On January 27, 1994, he was sentenced for various third-degree felony offenses he had committed between May and September of 1993. Consulting a single guidelines scoresheet, the trial court sentenced him to five years' incarceration on one third-degree felony (uttering forged bills) consecutive to five years' incarceration on another such offense (uttering forged instrument), and ordered that, after serving these two sentences, he be placed on concurrent five-year terms of probation for each of the remaining uttering and forgery offenses (all third-degree felonies themselves). When the prison sentences expired, DOC released Mr. Gibson from incarceration in August of 1998.
Neither of the offenses for which he had been sentenced to prison was one for which conditional release was authorized. See § 947.1405(2), Fla. Stat. (1993). His release from prison was in part attributable to gain-time,4 but both of these prison sentences expired on the day he reached the combined "maximum sentence expiration date." See § 944.275(2)(a), Fla. Stat. (1993) (...
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Gibson v. Florida Dept. of Corrections
...an expired sentence and apply the forfeiture to a sentence being served on a different offense. We review Gibson v. Florida Department of Corrections, 828 So.2d 422 (Fla. 1st DCA 2002), in which the First District Court of Appeal certified the following question of great public Does the for......
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